Study On The Determination Of Indirect Expropriation Under International Investment Law

The determination of indirect expropriation directly influences the distribution between the regulate rights of the states and investors' interests,which could explain why that issue has long been the focus of discussion in the field of international investment law.Recently,with the expanding trend of indirect expropriation,“how to identify indirect expropriation” has aroused widespread concern in the international community.The “Effect and Purpose Standards” has been regarded as the main criterion of indirect expropriation after years of tribunal practices.However,how to make the standard more operable has become an urgent issue,and it is fairly to say the principle of proportionality has led us to tackle this issue.This article consists of four chapters except the Instruction and the Conclusion.Chapter 1 starts with the basic issues of indirect expropriation,including the origin and recent development of indirect expropriation and its current situation.Although “Effect and Purpose Standards” has been recognized by most of the arbitral tribunals,we need further exploration to find a normalization rule to make it more operable and steady.Chapter 2 analyzes the application of the principle of proportionality in the identification of indirect expropriation,also introduces the principle of proportion under domestic law and international law.We can conclude from the judicialpractices of various jurisdictions that the principle of proportionality plays a very significant role in balancing competing interests.It can be speculated that its role in the field of indirect expropriation will be very prominent.Chapter 3 introduces the application of the principle of proportionality in the tribunal practices when tribunals dealing with indirect expropriation issues,mainly includes latest cases decided by the NAFTA tribunal,the ICSID tribunal and the PCA tribunal.The analysis of these cases focus on the advantages and disadvantages of the principle of proportionality when being applied in the determination of indirect expropriation.Chapter 4 mainly focuses on the indirect expropriation risks for today's China and how to prepare for these risks by applying the principle of proportionality.The article concludes that our country is facing two aspects of risks based on dual identities given the current situation,and provides reasonable proposals on how to deal with the recent indirect expropriation risks based on the application of the principle of proportionality for the Chinese government.